This article assesses the role of security detention within the context of a number of the United Kingdom's anti-terrorism policies. It considers the U.K. provisions on indefinite detention and the judicial response to those policies. Close attention is given to the Prevention of Terrorism Act 2005 (PTA 2005), and in particular the detailed regime of "control orders" it introduced. The different substantive and procedural bases for judicial challenges to control orders are illustrated by reference to the leading judicial decisions. The challenges have principally been based on the human rights provisions in the European convention on human rights. These have been given a degree of domestic incorporation by the Human Rights Act (1998). Consideration is given to the future use of control orders and how an "exit strategy" from them could be devised. Finally, the article analyses the place of security detention within the context of other policy options that form part of an Anti-Terrorism Strategy. It is submitted that none of them is cost-free in human rights terms.
INTRODUCTION: THE U.K. AND TERRORISM
The U.K. has assumed a leadership role on the War on Terrorism, serving as the principal ally of the United States in the War on Terrorism generally, and the wars in Afghanistan and in Iraq in particular. (1) The U.K.'s Security Service (MI5) monitors the activities of 200 terrorist networks, involving some 2,000 suspects. (2) Its domestic anti-terrorism law is wide-ranging, highly sophisticated, and reflects a variety of anti-terrorist policies. (3) Under the Human Rights Act 1998 (HRA), all of that legislation can now be tested for its compatibility with the European Convention on Human Rights (ECHR). The HRA represents an ingenious construction that impacts on legislative, executive and judicial powers, and involves all institutional actors in rights review. (4) Under HRA Section 3, all legislation must "so far as it is possible to do so" be read and given effect in a way that is compatible with the ECHR. (5) It if is not possible, the higher courts can issue a "declaration of incompatibility" under Section 4 of the HRA. (6) In all cases so far, these have been followed by remedial legislation. (7) Finally, under Section 6 of the HRA, it is unlawful for a public authority to act in a way which is incompatible with any Convention rights. (8) In any historical circumstances the HRA would have represented a significant challenge to the U.K. constitutional system. The post 9/11 context has subjected the HRA to the most searching forensic testing conceivable. (9)
This article assesses the role of security detention within the context of a number of U.K. anti-terrorism policies. Part II considers the U.K. provisions on indefinite detention and the judicial response to those policies. Part III examines the Prevention of Terrorism Act 2005 (PTA 2005), and in particular the detailed regime of "control orders" it introduced. Parts IV-VI considers the different bases for judicial challenges to control orders. Part VII considers the future use of control orders. Finally, Part VIII puts security detention within the context of other policy options that form part of an Anti-Terrorism Strategy.
CONTROLLING THE TERROR THREAT: THE ATSCA PART 4 REGIME FOR INDEFINITE DETENTION
Responding to the attacks of 9/11, the U.K Parliament passed the Anti-Terrorism, Crime, and Security Act of 2001 (ATCSA), which modified the Terrorism Act of 2000. (10) The most controversial new measures in the ATCSA were those in Part 4, entitled "Immigration and Asylum," which permit indefinite detention for foreign nationals suspected of being international terrorists. (11) These provisions required the U.K. to derogate from Article 5 of the ECHR and Article 9 of the International Covenant on Civil and Political Rights (ICCPR). (12) Section 21 of ATCSA provided that the Home Secretary could certify an individual as a "suspected international terrorist" if the Secretary reasonably believed that that person's presence in the U.K. was a threat to national security and that the Secretary suspected that the person was a terrorist. (13) Once certified, a range of immigration decisions (which can only be taken against non-nationals), including an order for removal, could be taken by the appropriate authorities even though the person could not be removed for legal or practical reasons. (14) Interestingly, the principal legal reason would normally be that it was contrary to the ECHR to remove an individual who presented substantial evidence that he would face a real risk of treatment incompatible with the ECHR. (15) In the anti-terrorist context, this would normally be ill-treatment or the death penalty, but in principle it could extend to other rights. (16)
Of the seventeen persons that were detained under the Part 4 regime, only one person won an appeal against certification. (17) According to Amnesty International, "most of the ATCSA detainees were held in the High Security Unit (USU) in Belmarsh" prison. (18) Amnesty International concluded that those held at Belmarsh suffered conditions that amounted to cruel, inhuman and degrading treatment, and that the conditions had led to a serious deterioration of their physical and mental health. (19) There also was evidence that the conditions of detention were causing psychiatric problems. (20) Legally, the detainees could have left at any time (hence it was referred to as a "three wall prison") if they were willing to return to a place where they would face a real risk of serious ill-treatment. (21) Although two individuals did just this, it was not be realistic to expect detainees make this choice. By the time of the decision of the House of Lords in the Belmarsh Detainees Case, those detained had already been held for three and a half years and faced the prospect of indefinite detention. (22)
The detention system in ATCSA was challenged in A (FC) and Others v. Secretary of State for the Home Department. (23) In a rare move, a nine-member panel of the House of Lords (HL) heard the appeal. The panel rejected the challenge to the existence of a public emergency with some misgivings and one dissent. (24) However, the House of Lords accepted a proportionality challenge to the derogation order and to Section 23 ATCSA. (25) Central to this view was the argument that the choice of an immigration measure to address a security problem had the inevitable result of failing to adequately address that problem. (26) It allowed non-U.K. suspected terrorists to leave the country with impunity and left British suspected terrorists at large, while imposing the severe penalty of indefinite detention on persons who, even if reasonably suspected of having links with Al-Qaeda, might harbour no hostile intentions towards the United Kingdom. (27) The detainees also successfully attacked Section 23 as discriminatory on the basis of nationality. (28)
The House of Lords decision in the Belmarsh Detainees Case was greeted with acclaim by human rights lawyers and with shock by the government. (29) Legally, under the structure of the HRA, the government did not have to accept the declaration of incompatibility. (30) In January 2005, however, the government announced that it accepted the declaration of incompatibility and that new legislation would replace indefinite detention in prison. (31) The new provisions were contained the Prevention of Terrorism Act 2005 (PTA 2005). (32) It is important to bear in mind that the government resorted to the changes because human rights jurisprudence was restricting the government from its preferred policy options for non-nationals, specifically deportation or indefinite detention.
THE PREVENTION OF TERRORISM ACT 2005--CONTROL ORDERS
After the Belmarsh Detainees Case the government proposed a new system of control orders. (33) The controversial proposals applied to British nationals and non-nationals. The government accepted that the proposals represented a "very substantial increase in the executive powers of the State in relation to British citizens." (34) In response to these proposals, backbench Labour Members of Parliament in the House of Commons rebelled and the House of Lords also voiced opposition. (35) After strong opposition in the House of Lords in particular, the government accepted amendments which required judges to authorize control orders (except for temporary emergency orders) and which required review of the legislation after one year. (36) The Home Secretary immediately issued the first control orders to deal with the ten suspects previously interned in Belmarsh. (37)
The PTA 2005 provides "legislative power to subject to a 'control order' any terrorist suspect whatever his/her citizenship and whatever the terrorism involved." (38) It was designed, therefore, to avoid dealing with non-nationals differently. Provision was made for two forms of control orders: "non-derogating" and "derogating." (39) The intended distinction was that the conditions in a derogating control order would constitute an interference with the right to liberty and security of person in Article 5 ECHR and would not fall within its exhaustive range of permissible heads of legitimate interference. (40) An example would be if the person were effectively under house arrest. A derogating control order would require parliamentary approval via an Article 15 ECHR designated derogation order under the HRA 1998 (41) and could only be authorized by a judge. (42) Derogating control orders can be imposed on application to a judge where there is a belief that it is more likely than not that someone is or "has been involved in terrorism-related" activities. (43) As of September 2008, no such orders had been made. (44)
A "control order" is an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism. (45)...